New York Law

On October 1, the New York State Division of Human Rights issued its final model sexual harassment policy and training guidelines to assist employers in complying with the new sexual harassment legislation that will become effective October 9, 2018. One piece of good news for employers is that the Division's final training guidelines no longer require that employers train all employees by January 1, 2019, as the Division initially proposed. Instead, according to the FAQs, employers will have until October 9, 2019 -- a full 12 months from the effective date of the legislation -- to complete the training for all employees. In addition, the Division's final training guidelines no longer require that new employees complete the sexual harassment training within 30 calendar days of starting their job. Instead, the Division's guidelines simply encourage employers to train their new employees "as soon as possible" after beginning employment.

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On September 7, 2018, Governor Cuomo signed legislation that amended Civil Service Law Section 75. Pursuant to the amendments, Section 75 now extends hearing rights (i.e., the right to written disciplinary charges and a hearing before imposition of a reprimand, fine, suspension without pay, demotion or termination) to “Labor Class” employees after five years of continuous service. This is the same protection that has previously been afforded to employees in the Non-Competitive Class after five years of continuous service and employees in the Competitive Class immediately upon permanent appointment. Prior to this amendment, Labor Class employees had no such protections unless they were veterans or exempt volunteer firefighters. The amended law is effective immediately. If you are a public employer and have any Labor Class employees who have completed five years of continuous service, they are now protected pursuant to Section 75.

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In his iconic book, The Story of Doctor Dolittle, children’s author Hugh Lofting introduces the world to a mythic animal -- the pushmi-pullyu -- that has two heads on the opposing ends of its body, begging the questions: 1) how does it make up its mind?; and 2) didn’t I once argue an appeal before a panel of them? As it were, in 2018 the inherent mind-bend of the pushmi-pullyu has seemingly entered into what has heretofore been the steady trajectory of the powerful faithless servant doctrine.

In prior blog articles, we have pointed out the incredible power of the faithless doctrine as a tool for clawing back compensation from disloyal employees while creating an in terrorem deterrent to would–be wrongdoers. We suggested, based on case law at the time, the doctrine could result not just in a full forfeiture of compensation but also an award of investigative costs. The doctrine could also be used, in our view, as a means of striking back at serial sexual harassers. In 2018, the courts have solidified the doctrine in one way but may have retracted it in another.

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The task-based business model of the gig economy is transformative in every industry affected, from ride-hailing (Uber, Lyft), to housing rental (Airbnb), to food delivery (Uber Eats, Grubhub), to professional services (Upwork, Guru). There seemingly is no end to the potential competitive disruption of gig entrepreneurs. This expansion continues to exert significant pressure on the fundamental question: are those who complete the tasks or provide the services employees or contractors? The question is neither new nor novel. The answer is pivotal to the success of the businesses and the expectations of the service providers and business owners.

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Mark Janus, an Illinois child welfare worker, decided not to join the American Federation of State, County, and Municipal Employees -- the union that represents his public sector co-workers. Under Illinois law, however, Janus is still required to pay fees to the union. These fees are known as “fair-share” fees, a label which refers to the Illinois law requiring the union to “fairly” represent Janus and all of his co-workers, whether or not they are union members. For this representation, non-union members like Janus must pay a “fair-share” fee,” which is approximately 78 percent of the full union dues, and in Janus’ case, amounts to $23.48 per pay period.

Janus has objected to the payment of this fee, and his case has reached the United States Supreme Court. A ruling by the Court in Janus v. AFSCME will be released very soon, and that ruling is expected to strike down the Illinois “fair share” law and similar state laws (including the law in New York) because they violate the United States Constitution.

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The unveiling of New York State’s 2019 budget made it clear that the state has maintained its focus on curbing sexual harassment in the workplace. Included in the legislation, which was delivered to the Governor on April 2, 2018, are numerous new requirements impacting both private and public employers.

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On December 18, 2017, Governor Cuomo signed legislation that amended Civil Service Law Sections 159-b and 159-c. Currently, those sections entitle most public sector employees to take up to four hours of paid leave per year to be screened for breast cancer (159-b) and up to four hours of paid leave per year to be screened for prostate cancer (159-c), without deducting any leave time (e.g., sick, personal, or vacation) from the employee.

Effective March 18, 2018, Civil Service Law Section 159-b will be amended by broadening the scope of that provision so that it will apply to all cancer screenings. Because Section 159-b will now apply to all types of cancer screenings (including screenings for prostate cancer), Civil Service Law Section 159-c (relating to prostate cancer screenings) will be repealed.

Public employers should review their policies to ensure that employees are permitted to take up to a maximum of four hours of paid leave per year for any type of cancer screening, without deducting any other leave time (e.g., sick, personal, or vacation) from the employee.

Although the minimum wage rate under the Fair Labor Standards Act remains $7.25 per hour and the U.S. Department of Labor’s efforts to raise the minimum salary to qualify for a white-collar exemption under federal law have stalled, employers in New York should be aware that the state minimum wage rate and the state salary threshold to qualify for the executive and administrative exemptions will increase effective December 31, 2017.

The increases to the state minimum wage effective December 31, 2017, are as follows:

Employers outside of New York City, Nassau, Suffolk, and Westchester counties: $10.40 per hour

Employers in Nassau, Suffolk, and Westchester counties: $11.00 per hour

Employers in New York City with 10 or fewer employees: $12.00 per hour

Employers in New York City with 11 or more employees: $13.00 per hour

Fast food employees will be entitled to an even higher wage rate effective December 31, 2017, as follows:

Fast food employees outside of New York City: $11.75 per hour

Fast food employees in New York City: $13.50 per hour

The salary threshold to qualify for the executive and administrative exemptions effective December 31, 2017, are as follows:

Employers outside of New York City, Nassau, Suffolk, and Westchester counties: $780.00 per week

Employers in Nassau, Suffolk, and Westchester counties: $825.00 per week

Employers in New York City with 10 or fewer employees: $900.00 per week

Employers in New York City with 11 or more employees: $975.00 per week

New York does not set a salary threshold to qualify for the professional exemption, so employees must meet the current federal salary threshold of $455.00 per week to qualify for the professional exemption. For all of the white-collar exemptions, employees must also meet the applicable duties requirements.

A chart summarizing the minimum wage rates, tip credits, uniform maintenance allowances, meal and lodging credits, and exempt salary thresholds under the Miscellaneous Industries Wage Order can be found here. A chart summarizing this same information under the Hospitality Industry Wage Order can be found here.

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On November 6, 2017, New York City Mayor Bill de Blasio signed into law an amendment to the City’s administrative code which would afford leave time to victims of family offense matters, sexual offenses, stalking, and human trafficking, and their family members. The amendment will take effect 180 days after the Mayor’s signing (May 5, 2018), and New York City will join a host of other states and municipalities that already provide similar leave time for domestic violence victims and their families.

Chapter 8 of Title 20 to the NYC Administrative Code, previously titled the “Earned Sick Time Act,” will now be referred to as the “Earned Safe and Sick Time Act.” Under the amendment, employers with five or more employees are required to provide a minimum of one hour of safe/sick time for every thirty (30) hours worked by an employee. Employers are not required to provide more than forty (40) hours of safe/sick time in a calendar year.

A covered employee who is a victim or who has a family member who has been the victim of a family offense matter, sexual offense, stalking, or human trafficking is entitled to use safe time for any of the following reasons:

To obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;

To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;

To meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing, or consumer credit;

To file a complaint or domestic incident report with law enforcement;

To meet with a district attorney’s office;

To enroll children in a new school; or

To take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Employers may request documentation for an absence of more than three (3) consecutive work days for safe time. Documentation signed by an employee or volunteer of a victim services agency, an attorney, a member of the clergy, or a medical or other professional service provider constitutes reasonable documentation under the Act. The production of a police or court record, or even a notarized letter from the employee explaining his/her need to take safe leave may also be considered reasonable documentation. Employers are prohibited from requiring that the documentation specify the details of the family offense matter, sexual offense, stalking, or human trafficking.

Employers are required to provide notice to employees of their right to safe leave within thirty (30) days of the amendment’s effective date.

In January 2017, the New York State Senate introduced a bill which would amend the State Labor Law to similarly provide unpaid leaves of absence for victims of domestic or sexual violence. To date, this bill — Senate Bill S2856 — remains before the Senate Labor Committee and has not yet been calendared for presentation before the State Senate. Versions of this bill have been introduced by the State Senate in prior years without much success. However, in light of New York City’s recent addition of safe time, the presentation and passage of this bill may be more likely than in previous years.

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Employers in New York will be subject to new “call-in” pay and scheduling requirements under recently-proposed state Regulations. Governor Andrew Cuomo recently announced these proposed Regulations, which the New York State Department of Labor (“DOL”) will reportedly publish in the State Register on November 22, 2017.

New York regulators have recently focused their enforcement sights on the so-called “just-in-time” or “on-demand” scheduling of workers. According to Governor Cuomo, this practice entails the scheduling or cancelling of a worker’s shift with little or no advance notice. At the Governor’s direction, the DOL recently held hearings across the state on this issue, which then led to issuance of the proposed Regulations.

If enacted, the proposed Regulations would amend New York’s catch-all “Miscellaneous Industries” minimum wage order, including those portions applicable to non-exempt “nonprofitmaking institutions” across the state.

Call-In Pay Under Current New York Law

Under the Miscellaneous Industries minimum wage order, non-exempt employees who report to work are currently entitled to call-in pay equal to the lesser of four hours of pay or pay for the number of hours in the regularly-scheduled shift, at the state minimum wage rate. Notably, the DOL has interpreted this provision, such that it only effectively applies to non-exempt workers who earn at or very near the state minimum wage. In this regard, the DOL previously stated in Opinion Letter No. RO-09-0133, dated December 2, 2009: “[I]f the amount paid to an employee for the workweek exceeds the minimum and overtime rate for the number of hours worked and the minimum wage rate for any call-in pay owed, no additional payment for call-in pay is required during that workweek.” (emphasis added).

In other words, under DOL’s interpretation, New York employers could potentially apply an “offset” — for amounts paid to workers above the state minimum wage and overtime rates during the same workweek — against any “call-in” pay otherwise due to workers.

Additionally, under current law, employers are generally free to schedule, and, when necessary, cancel shifts before employees report for work, without incurring any additional payment obligation.

Call-In Pay Under the Newly-Proposed DOL Regulations

The recently-proposed Regulations would create a number of new circumstances when non-exempt employees will be eligible to receive “call-in” pay, including the following:

Employees who report to work for a shift that was not scheduled at least 14 days in advance will be entitled to an additional two hours of call-in pay;

Employees whose shifts are cancelled within 72 hours of the start of that shift will be entitled to at least four hours of call-in pay;

Employees who are required to be on-call and available to report to work for any shift will be entitled to at least four hours of call-in pay; and

Employees who are required to be in contact with their employer, within 72 hours of the start of a shift, to confirm whether or not to report to work for that shift will be entitled to four hours of call-in pay.

Under the Regulations, the above call-in pay must be calculated at the current state minimum wage rate (which now varies by location and workforce size) without any allowances, and employees must receive their “regular rate” for their actual time of attendance. However, these new requirements will not apply to otherwise covered employees whose weekly wages exceed 40 times the applicable state minimum wage.

The proposed Regulations will also replace current “call-in” pay requirements with the following:

Employees who report to work for any shift will be entitled to at least four hours of call-in pay.

Notably, the proposed Regulations state: “Call-in pay shall not be offset by the required use of leave time, or by payments in excess of those required under” the applicable minimum wage order. Although this provision is not entirely clear on its face, conceivably, it was drafted with the intent of curtailing application of the above-referenced weekly “offset” provided under prior DOL interpretation.

Finally, the proposed Regulations state that the above requirements will not apply to certain employees “who are covered by a valid collective bargaining agreement that expressly provides for call-in pay.” Further, the requirements may not apply in certain other circumstances, such as when a business cannot begin or continue operations due to a state of emergency or other “Act of God” beyond its control.

Employers should also be mindful that New York City recently passed a similar law that will become effective on November 26, 2017. This other local law places somewhat similar requirements on retail employers, and also places additional requirements on certain fast food establishments.

According to DOL, the proposed Regulations will be subject to a 45-day comment period after official publishing. We will update this article with any further developments, and will be announcing a free webinar on the proposed Regulations in the coming days.

If you have any questions about this issue in the meantime, please contact Andrew D. Bobrek, any of the attorneys in our Labor and Employment Law Practice, or the attorney in the firm with whom you are regularly in contact.

Author’s Note: A special thanks to Richard White, who assisted in drafting this article.

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The New York State Workers’ Compensation Board (“WCB”) has just released the long-awaited Paid Family Leave (“PFL”) forms. There is a general application form (PFL-1), as well as various certification forms depending on the type of leave requested:

As we mentioned in a previous blog post, the WCB has already released the waiver form (PFL-Waiver) and two forms regarding voluntary coverage (PFL-135 and PFL-136). We will continue to provide additional updates on PFL as they become available.